Citation Nr: 9930974
Decision Date: 10/29/99 Archive Date: 11/04/99
DOCKET NO. 98-13 447 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service-connection for a disability due to
undiagnosed illness manifested by chest wall pain.
2. Entitlement to service-connection for a disability due to
undiagnosed illness manifested by headaches and nausea.
3. Entitlement to service-connection for a disability due to
undiagnosed illness manifested by muscle aches.
4. Entitlement to service-connection for a disability due to
undiagnosed illness manifested by fatigue.
5. Whether there is new and material evidence to reopen a
claim for service-connection for chest pain and headaches
including migraine headaches.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Don Hayden, Counsel
INTRODUCTION
The veteran served on active duty from August to December
1989 and from November 1990 to May 1991. He had service in
the southwest Asia theater of operations from February 7 to
April 24, 1991.
In April 1994, the Department of Veterans Affairs (VA)
Regional Office in Albuquerque, New Mexico (RO), denied
service connection for a disability manifested by headaches
and a disability manifested by chest pain. The veteran was
notified of that decision in May 1994; he did not submit a
notice of disagreement within one year of the date of
notification. In a December 1995 rating decision, the RO
decided that there was no new and material evidence to reopen
a claim for service connection for migraine headaches. The
veteran was notified of that decision in January 1996 and did
not submit a notice of disagreement within one year of the
date of notification.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a May 1998 rating decision by the RO,
made pursuant to a claim received in October 1997, which
denied service connection for costochondritis and headaches,
and for undiagnosed illnesses manifested by chest wall pain,
headaches and nausea, muscle aches, fatigue and mood swings.
The appealed rating decision also denied service connection
for arteriosclerosis and right wrist fracture residuals and
increased ratings for left wrist strain and fractured nose
residuals. The veteran has expressed disagreement only with
the denial of service connection for chest pain, headaches,
and for undiagnosed illnesses manifested by chest wall pain,
headaches and nausea, muscle aches, fatigue and mood swings.
The appealed rating decision also found that there was no new
and material evidence to reopen a claim for service
connection for migraine headaches.
The Board is legally obligated to ascertain whether there is
a prior claim which was finally decided and, if so, whether
the veteran has provided new and material evidence to reopen
the claim before proceeding further. Barnett v. Brown, 8
Vet. App. 1 (1995).
Because the veteran did not submit a notice of disagreement
within one year of being notified of the April 1994 and
December 1995 rating decisions, those decisions are final.
38 C.F.R. § 20.302(a) (1998). The issue of whether new and
material evidence has been submitted subsequent to those
decisions will be discussed in the context of the veteran's
broader claims of entitlement to service connection for chest
pain and headaches.
FINDINGS OF FACT
1. The veteran had service in the Southwest Asia theater of
operations during the Persian Gulf War.
2. Both chest pain and headaches have been attributed to
clinically diagnosed disorders.
3. There is no competent evidence of a disability due to
undiagnosed illness manifested by nausea.
4. There is no competent evidence of a disability due to
undiagnosed illness manifested by muscle aches.
5 There is no competent evidence of a disability due to
undiagnosed illness manifested by fatigue.
6. The April 1994 rating decision denied service connection
for chest pain, because the separation examination did not
show chest pain, there was no evidence of continuity and
there was no evidence of a chronic impairment manifested by
chest pain, and for headaches, because there was no evidence
of treatment for headaches.
7. The veteran did not submit a notice of disagreement
within one year of being notified of the denial of service
connection for chest pain and headaches in May 1994.
8. The December 1995 rating decision denied service
connection for migraine headaches on the basis that new and
material evidence had not been received showing that migraine
headaches were present in service; a notice of disagreement
was not submitted within one year following notification of
that decision.
9. The evidence received subsequent to the December 1995
rating decision includes medical records showing diagnosis of
headaches and must be considered in order to fairly evaluate
the veteran's claim.
10. There is no medical evidence of a nexus between the
headaches and a disease or injury in service, of a chronic
headache disorder in service or relating current headaches to
continuing symptomatology following a condition observed
during service.
11. The additional evidence related to chest pain does not
alter the elements that were specified bases for the denial
of service-connection for chest pain in the April 1994 rating
decision and need not be considered in order to fairly
evaluate the veteran's claim.
CONCLUSIONS OF LAW
1. The claims for service connection for undiagnosed illness
manifested by headaches and nausea, chest pain, muscle pain
and fatigue are not well-grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
2. The April 1994 rating decision which denied service
connection for chest pains and headaches is final. 38
U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 20.302
(1999).
3. The evidence received subsequent to the December 1995
rating decision with regard to headaches is new and material
and the claim for service connection for headaches has been
reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1999).
4. The reopened claim for service connection for headaches
is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991).
5. The evidence received subsequent to the April 1994 rating
decision with regard to chest pains is not new and material
and the claim for service connection for chest pains has not
been reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
A March 1989 enlistment examination was reported to show no
abnormalities, except for a right upper arm scar and
circumcision. In November 1989, the veteran was seen for
complaints of pain in both shins and below the knees. There
was mild tenderness of the lateral and medial knees and
tenderness of the lateral and medial tibias. The assessment
was possible shin splints. In April 1991, he complained of
pain in his left wrist on flexion for the prior 6 days. X-
ray studies found no apparent fractures. The assessment was
rule out wrist sprain. An undated redeployment from
Operation Desert Storm examination was reported to show no
abnormalities.
In February 1992, the veteran was seen at a VA outpatient
facility complaining of pain and aching in both elbows. It
was recorded that he lifted heavy packages every day. After
examination, the impression was arthralgia secondary to
overuse. In October 1992, the veteran was seen at a VA
outpatient facility complaining of chest wall pain and nasal
obstruction. No findings were reported. He was referred for
"ENT" evaluation.
During a VA Persian Gulf Screening Examination in October
1992, the veteran complained of occasional chest pain 2
months before. He said that there had been some smoke in
Saudi Arabia, but he did not recall any respiratory problems.
He said that he could taste oil in his mouth when the smoke
was heavy. It was recorded that there were no headaches. He
said that he occasionally had a hard time taking a deep
breath. At times, it felt like something was twisting his
chest; it would ease when he lay down and took a deep breath.
It was also recorded that there was no nausea or vomiting.
His only musculoskeletal complaint was occasional low back
pain, which resolved with rest. Examination found tenderness
in the left sternal aspect of the chest in the area from the
3rd to the 6th ribs. There were no musculoskeletal changes.
The chest wall pain was located at the chest wall pectoral
insertion of the costosternal joint. The pertinent diagnosis
was chest wall pain.
In October 1995, the veteran's wife submitted a statement
that he had severe headaches. Also in October 1995, the
veteran was seen at a Lovelace Health System facility,
because of occipital headaches, "on and off since March 1992
when he returned from the Gulf War...." In the assessment,
the examiner said that she discussed the importance of a
complete physical examination, including an eye examination,
keeping a diary of headache frequency and foods and cutting
down on caffeine.
During a November 1995 VA examination, the veteran reported
that headaches began to bother him at age 27, (service
records show that he was born in April 1965). The headaches
occurred 3 to 4 times a week and would last 3 to 4 hours, if
relieved by medication; occasionally, they would last 2 or 3
days. During the headache, he had indigestion or nausea.
The examiner said that the history sounded most compatible
with tension/muscle contraction headache.
In November 1995, the veteran was seen at a Lovelace Health
System facility. The pertinent problems were residuals of
June 1994 motor vehicle accident with back and neck strain
and bifrontal headaches. It was recorded that, at times, he
was fatigued and noted that he worked the "graveyard shift"
5 nights a week. He reported that, at times, he had
shortness of breath, without exertion and he seemed to take a
long time to get over colds. It was also recorded that he
had been exposed to heavy oil fumes in Saudi Arabia. He
denied chest pain. It was further recorded that headaches
would occur 3 or 4 times and last from 2 to 6 hours; the
headaches had increased after the motor vehicle accident. He
was described as being somewhat tired-looking. The lungs
were clear; muscle strength and tone were normal. The
assessments were headaches, probably tension muscle
contraction, fatigue of undetermined cause, difficulty
clearing respiratory tract infections and history of petrol
chemical fire exposure in Saudi Arabia during Desert Storm.
In December 1997, D. T. reported that she had known the
veteran since 1990 and recalled that he had complained of
headaches and fatigue on several different occasions. R. J.
H. reported that the veteran seemed to have chronic
headaches.
During a December 1997 VA general medical examination, the
veteran reported that approximately 6 months after returning
from Saudi Arabia he began noticing nausea associated with
headaches. The headaches were throbbing and associated with
a stiff neck. They were not associated with stress and
nausea was not associated with meals. The headaches and
nausea would occur once or twice a week and last for 20
minutes to 3 hours. They were alleviated by rest, darkness
and 3 or 4 Advil. About 2 years before, he began to
experience generalized muscle aching and fatigue, from 'head
to toe.' The episodes of nausea would occur 3 to 4 times a
week and last for 6 to 7 hours. The ache tended to be worse
in the chest and shoulder region. The last episode had
occurred that morning. The muscle aches were alleviated by
Advil, Tylenol and rest. They did not occur at any specific
time of day. He reported that he usually worked the
"graveyard shift" as a mail carrier. He reported being
exposed to Diesel fuel fumes, black smoke and burning Diesel
fuel while in the Persian Gulf. The examiner reported that
the medical records pertaining to the veteran had been
reviewed. On examination, there was tenderness to palpation
in the costal cartilage in the anterior chest region. The
abdomen was benign with no masses or organomegaly; the bowel
sounds were positive. There was no swelling or tenderness in
the right wrist and it was stable to external stress. Grip
strength was equal, bilaterally, and upper and lower
extremity strength was 5/5, bilaterally. There were no
sensory deficits noted. Costochondritis, symptomatic was the
pertinent diagnosis. Resolved right wrist sprain and nasal
fracture with normal physical examination were also
diagnosed. The examiner said that she was unable to diagnose
generalized muscle aches, at that time and reported that the
muscle examination was within normal limits.
During a December 1997 VA psychiatric examination, it was
recorded that the veteran's primary complaints were chronic
frontal headaches, fatigue, muscle aches, chest pain and some
nausea. He worked on the night shift from 10 pm to 6:30 am.
He said that sometimes the headaches would occur twice a week
and, other times, not more than once a month. He first
noticed the symptoms about 6 months after he returned from
the Persian Gulf. He denied headaches and fatigue prior to
that time. He complained that he had no energy and did not
feel like doing anything; his wife had noticed that he did
not have the energy he used to have. He also complained of
chest pain and muscle aches which occurred about once a week.
He said that the headaches were worse in summer and he had to
call in sick more often. He took no medication except Advil
for the headaches, muscle aches and chest pain. He said that
the chest and muscle pain had improved, but that the
headaches had not. He said that he had been examined for
headaches, but no source had been found. He reported
inhaling smoke from burning Diesel fuel. The diagnosis was
Axis III: History of chronic headaches, chest pain, muscle
aches, nausea and fatigue over the past 6 years; there was no
Axis I or II diagnosis.
In a letter received in January 1998, the veteran reported
the days that he had missed from work since September 1996,
because of illness, such as headaches and nausea. He
reported missing 2 days in September 1996, 1 day in October
1996, 2 days in November 1996, 2 days in December 1996 and 1
day each in January, March, May and July 1997. He reported
that he was unable to find records prior to September 1996.
During a March 1998 VA neurological examination, it was
recorded that the veteran had had no problem with headaches
until April 1992, after he had returned from Saudi Arabia.
He had occasional headaches while there; soon after returning
to the United States, the headaches occurred more frequently.
Initially, he stated that the headaches had remained about
the same. Later in the interview, he indicated that two
years before, the headaches had been worse; at that time, he
missed some days of work but missing work was fairly unusual
by the time of the examination. The headaches would occur 2
or 3 times a week and would usually last 1 or 2 hours,
although a bad one might last 4 or 5 hours. The bad ones
would occur once or twice, every 2 or 3 weeks. He had light
sensitivity, but no nausea or vomiting associated with the
headaches. The intensity varied. On some occasions, he had
to go into a dark room and take a couple of Extra Strength
Tylenol or ibuprofen; on other occasions, he could continue
his activities. He reported that the headaches could be
relieved with massage and that he felt better if he took
ibuprofen or Tylenol. On examination, muscle tone and bulk
were normal; the neurologic examination was normal. The
examiner said that the history was most compatible with
muscle-contraction type headaches. She also noted that
costochondritis was an accepted diagnosis and did not need to
be related to an undiagnosed illness complaint. The claims
file and prior examination reports were reviewed.
In a March 1998 statement, D. T. reported hearing the veteran
complaining of headaches and recalled noticing some fatigue;
she recalled that the headaches and fatigue began in July
1991.
In the substantive appeal, received in August 1998, the
veteran stated that going on sick call was frowned upon and
that he knew that not much could be done for chest pain and
headaches. Accordingly, he treated himself, mostly with
Tylenol.
At a hearing before a member of the Board in June 1999, the
veteran testified that, approximately, 6 or 7 months after
his return from Saudi Arabia he began to notice headaches,
chest pain and fatigue. He said that pollution in Saudi
Arabia was really bad from the oil fires. In addition, they
would use Diesel oil to burn excrement every other day and
that the grounds were covered with Diesel oil to control the
dust. He said that he experienced nausea while in Saudi
Arabia because of the Diesel fuel. He reported being given
shots and pills for approximately 2 months when he returned
to the United States. Hearing Transcript (T.) at 3.
The veteran said that he experienced tightness in his chest
while on active duty, but not before going to Saudi Arabia.
Id. at 4. He reported that he was on medication for
dizziness and that he began to notice muscle aches and
fatigue shortly after he returned from Saudi Arabia. Id. at
5. He said that he experienced tightness in his chest while
in Saudi Arabia. The chest tightness and nausea were almost
constant. Id. at 7. He had a low-level nausea, all of the
time; the chest tightness occurred pretty much all of the
time. The chest tightness did not increase or decrease with
activity. Id. at 8. The headaches and nausea might occur 2
or 3 times a week, sometimes less. Id. at 11. The muscle
aches would occur once or twice a week and the fatigue would
occur on almost a daily basis. Id. at 12. He said that no
one had been able to determine the cause of his symptoms.
Id. at 13. He reported missing 4 or 5 days from work in
1999. Id. at 15.
At the hearing, the veteran submitted a statement from a VA
physician, dated in June 1999, that he had had chronic
medical problems that would cause recurring incapacitation
making it impossible for him to work when affected. It was
reported that the condition began in 1992. The veteran
waived initial consideration by the RO.
Criteria, Undiagnosed Illnesses
The term "service connection" connotes many factors but
basically it means that a disease or injury, resulting in
disability, was incurred coincident with service in the Armed
Forces or if preexisting such service, was aggravated
therein. 38 C.F.R. § 3.303(a) (1998). In order to establish
service connection for a claimed disability the facts must
demonstrate that a disease or injury resulting in current
disability was incurred in the active military service or, if
pre-existing active service, was aggravated therein. 38
U.S.C.A. §§ 1110, 1131 (West 1991).
With chronic disease shown as such in service so as to permit
a finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service-connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "Chronic." When the disease identity is
established, there is no requirement of evidentiary showing
of continuity. Continuity of symptomatology is required only
where the condition noted during service is not shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1999).
Service connection may be granted for a disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Compensation shall be paid to a Persian Gulf veteran who
exhibits objective indications of chronic disability
resulting from an illness or combination of illnesses
manifested by one or more signs or symptoms such as those
listed below, provided that such disability: (i) became
manifest either during active military, naval, or air service
in the Southwest Asia theater of operations during the
Persian Gulf War, or to a degree of 10 percent or more not
later than December 31, 2001; and (ii) by history, physical
examination, and laboratory tests cannot be attributed to any
known clinical diagnosis.
The term "objective indications of chronic disability"
includes both "signs," in the medical sense of objective
evidence perceptible to an examining physician, and other,
non-medical indicators that are capable of independent
verification. Disabilities that have existed for 6 months or
more and disabilities that exhibit intermittent episodes of
improvement and worsening over a 6-month period will be
considered chronic. The 6-month period of chronicity will be
measured from the earliest date on which the pertinent
evidence establishes that the signs or symptoms of the
disability first became manifest.
Signs or symptoms which may be manifestations of undiagnosed
illness include, but are not limited to: (1) fatigue (2)
signs or symptoms involving skin (3) headache (4) muscle pain
(5) joint pain (6) neurologic signs or symptoms (7)
neuropsychological signs or symptoms (8) signs or symptoms
involving the respiratory system (upper or lower) (9) sleep
disturbances (10) gastrointestinal signs or symptoms (11)
cardiovascular signs or symptoms (12) abnormal weight loss
(13) menstrual disorders.
Compensation shall not be paid if there is affirmative
evidence that an undiagnosed illness was not incurred during
active military, naval, or air service in the Southwest Asia
theater of operations during the Persian Gulf War; if there
is affirmative evidence that an undiagnosed illness was
caused by a supervening condition or event that occurred
between the veteran's most recent departure from active duty
in the Southwest Asia theater of operations during the
Persian Gulf War and the onset of the illness; or if there is
affirmative evidence that the illness is the result of the
veteran's own willful misconduct or the abuse of alcohol or
drugs. 38 U.S.C.A. § 1117(a) (West 1991); 38 C.F.R. § 3.317
(1999).
Analysis, Undiagnosed Illnesses
Under 38 U.S.C.A. § 5107(a), a person who submits a claim for
benefits under a law administered by the VA shall have the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. A well-grounded claim is "a plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only possible to
satisfy the initial burden" of 38 U.S.C.A. § 5107(a). Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990).
Establishing a well-grounded claim for service connection for
a particular disability requires more than an allegation that
the disability is service connected; it requires evidence
relevant to the requirements for service connection and of
sufficient weight to make the claim plausible or capable of
substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609,
610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some
factual issues, competent lay evidence may be sufficient.
Where the claim involves issues of medical fact, such as
medical causation or medical diagnoses, competent medical
evidence is required. Id. at 93.
In general, a well-grounded claim for service connection
requires medical evidence of a current disability, competent
evidence of a disease or injury in service and medical
evidence of a nexus between the current disability and the
disease or injury in service. Caluza v. Brown, 7 Vet. App.
498 (1995).
A well-grounded claim for compensation under 38 U.S.C.A.
§ 1117(a) and 38 C.F.R. § 3.317 for disability due to
undiagnosed illness generally requires the submission of
competent evidence of: (1) active military, naval, or air
service in the Southwest Asia theater of operations during
the Persian Gulf War; (2) the manifestation of one or more
signs or symptoms of undiagnosed illness; (3) objective
indications of chronic disability during the relevant period
of service or to a degree of disability of 10 percent or more
within the specified presumptive period; and (4) a nexus
between the chronic disability and the undiagnosed illness.
The type of evidence necessary to establish a well-grounded
claim as to each of those elements may depend upon the nature
and circumstances of the particular claim. With respect to
the 2nd and 4th elements, evidence that the illness is
"undiagnosed" may consist of evidence that the illness
cannot be attributed to any known diagnosis or, at minimum,
evidence that the illness has not been attributed to a known
diagnosis by physicians providing treatment or examination.
With respect to the 2nd and 3rd elements, the manifestation of
one or more signs or symptoms of undiagnosed illness or
objective indications of chronic disability may be
established by lay evidence if the claimed signs or symptoms,
or the claimed indications, respectively, are of a type which
would ordinarily be susceptible to identification by lay
persons. If the claimed signs or symptoms of undiagnosed
illness or the claimed indications of chronic disability are
of a type which would ordinarily require the exercise of
medical expertise for their identification, then medical
evidence would be required to establish a well-grounded
claim.
With respect to the 3rd element, a veteran's own testimony
may be considered sufficient evidence of objective
indications of chronic disability, for purposes of a well-
grounded claim, if the testimony relates to non-medical
indicators of disability within the veteran's competence and
the indicators are capable of verification from objective
sources.
Medical evidence would ordinarily be required to satisfy the
4th element, although lay evidence may be sufficient in cases
where the nexus between the chronic disability and the
undiagnosed illness is capable of lay observation.
VAOPGCPREC 4-99 (May 3, 1999).
There is competent evidence showing that the veteran had
active military service in the Southwest Asia theater of
operations during the Persian Gulf War.
Although headache and muscle pain are listed in the
regulations as signs or symptoms which may be manifestations
of undiagnosed illness, they can also result from diagnosed
disorders. To be a sign or symptom of an undiagnosed
illness, they cannot result from a diagnosed disorder. There
must be medical evidence that the illness cannot be
attributed to any known diagnosis or, at minimum, evidence
that the illness has not been attributed to a known diagnosis
by physicians providing treatment or examination. Both the
headaches and chest pain have been attributed to diagnosed
disorders by examining physicians; the headaches as being
tension and/or muscle contraction types and the chest pain as
costochondritis. Since both have been attributed to
diagnosed disorders, they do not meet the second element for
a well-grounded claim for service connection for undiagnosed
illness manifested by headaches and chest pain. The issue of
direct service-connection for chest pain and headaches will
be addressed below.
The veteran's complaints of nausea and muscle aches, in
addition to headache and muscle pain are listed in the
regulations as signs or symptoms which may be manifestations
of undiagnosed illness. The veteran is competent to report
that he has muscle aches and nausea. However, the Board
believes that the claimed signs or symptoms of undiagnosed
illness or the claimed indications of chronic disability are
of a type which would ordinarily require the exercise of
medical expertise for their identification and that the
determination of the cause of those muscle aches and nausea,
including whether they are manifestation of signs or symptoms
of undiagnosed illness, requires the exercise of medical
expertise. In effect, the diagnosable disorders must be
excluded. Therefore, medical evidence is required for a
well-grounded claim.
No physician has expressed an opinion that the muscle aches
or nausea is a manifestation of signs or symptoms of
undiagnosed illness. In fact, the only medical opinion
expressed was that expressed by the physician who conducted
the December 1997 VA examination. She said that she was
unable to diagnose generalized muscle aches following the
examination and that the muscular examination was within
normal limits. There are no medical opinions that nausea is
a manifestation of undiagnosed illness. There is nothing in
the record to suggest that the veteran is qualified to
express an opinion requiring the exercise of medical
expertise. The various lay statements do not purport to
relate the cause of the veteran's symptoms. Since there is
no medical evidence that the muscle aches or nausea is a
manifestation of undiagnosed illness, the claim for service-
connection for those disabilities as manifestation of signs
or symptoms of undiagnosed illness is not well grounded.
Fatigue of undetermined cause was diagnosed following
examination at a Lovelace Health System facility in November
1995. However, the Board does not believe that statement is
sufficient to establish fatigue as a manifestation of
undiagnosed illness. Therefore, the claim for service-
connection for fatigue as a manifestation of signs or
symptoms of undiagnosed illness is also not well grounded.
The Board does not believe that the June 1999 VA physician's
statement that the veteran had chronic medical problems that
caused recurring incapacitation which began in 1992 makes the
claim for service-connection for the disabilities at issue as
manifestation of signs or symptoms of undiagnosed illness
well grounded. The physician does not report any specific
medical problems, nor does he relate the unspecified medical
problems to undiagnosed illness.
Although the Board denied service-connection for disabilities
as manifestation of signs or symptoms of undiagnosed illness
on a basis different from the RO, the veteran has not been
prejudiced by the Board's decision since, in deciding the
claim on the merits, rather than considering the case as to
whether the claim was well grounded, the RO actually accorded
the veteran greater consideration of the claim than was
warranted by the circumstances. Accordingly, the veteran has
not been prejudiced by the Board's action. Bernard v. Brown,
4 Vet. App. 384 (1993).
The Board finds that the claim for service-connection for the
disabilities as manifestation of signs or symptoms of
undiagnosed illness is complete. The veteran has not
identified any additional, available evidence which, if true,
would make his claim for service-connection for the claimed
disorders plausible. Beausoleil v. Brown, 8 Vet. App. 459
(1996).
Criteria and Analysis, New and Material Evidence
Once there is a final decision, new and material evidence is
required to reopen the claim. 38 U.S.C.A. § 5108. In Elkins
v. West, 12 Vet. App. 209 (1999) (en banc), the United States
Court of Veterans Appeals ( as of March 1, 1999, the United
States Court of Appeals for Veterans Claims) (Court) held
that VA must first determine whether new and material
evidence has been presented under 38 C.F.R. § 3.156(a);
second, if new and material evidence has been presented,
immediately upon reopening the VA must determine whether,
based upon all the evidence and presuming its credibility,
the claim as reopened is well grounded pursuant to 38
U.S.C.A. § 5107(a); and third, if the claim is well grounded,
evaluate the merits after ensuring the duty to assist under
38 U.S.C.A. § 5107(a) has been fulfilled.
The term "new and material evidence" means evidence which has
not been previously submitted which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which, by
itself or in connection with evidence previously assembled,
is so significant that it must be considered in order to
fairly decide the merits of the claim. 38 C.F.R. § 3.156.
The newly presented evidence need not be probative of all the
elements required to award the claim as in this case which
deals with service connection. Evans v. Brown,
9 Vet. App. 273, 284 (1996), citing Caluza v. Brown,
7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir.
1996) (table). It is the specified basis for the final
disallowance that must be considered in determining whether
the newly submitted evidence is probative. Such evidence
must tend to prove the merits of the claim as to each
essential element that was a specified basis for that last
final disallowance of the claim. Evans, 9 Vet. App. at 284.
The evidence of record at the time of the April 1994 rating
decision consisted of service medical records, reports of VA
examinations in October 1991 and October 1992 and VA
outpatient treatment records made in February and October
1992. Based on that evidence, the RO denied service
connection for chest pains because there was no competent
evidence of chronic chest pains in service or of continuity
of symptomatology. Additionally, the report of a November
1995 VA examination was of record at the time of the December
1995 rating decision. Service connection for headaches was
denied because there was no competent evidence of treatment
for migraine headaches.
The medical evidence received subsequent to those rating
decisions consists of reports of VA examinations in December
1997 and March 1998, outpatient records from the Lovelace
Health System facility in October and November 1995 and a
June 1999 VA medical statement. The medical evidence shows
that the veteran has been diagnosed as having muscle
contraction type headaches and symptomatic costochondritis
subsequent to service. In addition, there is the veteran's
substantive appeal in which he indicates that he had
headaches and chest pain during service but did not seek
treatment for either. All of the foregoing evidence is new;
it was not of record at the time of the earlier rating
decisions.
Reading the April 1994 and December 1995 rating decisions,
the specified basis for the denial of service-connection for
headaches was that there was no evidence of treatment for
headaches in service. Treatment is not required for a grant
of service-connection, although it can help to establish the
elements of a claim. Wilson v Derwinski, 2 Vet. App. 16, 19
(1991) cited in Savage v. Gober 10 Vet. App. 488 at 496
(1997). Reading the rating decisions broadly, it appears
that the RO denied service-connection for headaches because
there was no medical evidence of disabling headaches. A
current disability is required for a grant of service-
connection. See Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992) and Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Without competent evidence of a current disability, the claim
would not be well grounded.
The evidence received subsequent to the December 1995 rating
decision includes medical records showing diagnoses of
headaches. Accordingly, it alters an element that the Board
has determined was a basis for the denial of service-
connection for headaches in the rating decision by showing a
current disability. It also includes competent evidence of
headaches in service which is a necessary element for
service-connection. The additional evidence must be
considered in order to fairly evaluate the veteran's claim
for service-connection for headaches. Therefore, the Board
determines that the veteran's claim for service-connection
for headaches has been reopened with new and material
evidence.
Once it has been determined that new and material evidence
has been presented, the Board must determine whether, based
upon all the evidence and presuming its credibility, the
claim as reopened is well grounded pursuant to 38 U.S.C.A.
§ 5107(a).
As noted above, a well-grounded claim for service connection
requires medical evidence of a current disability, competent
evidence of a disease or injury in service, both of which has
been provided by the new evidence, and medical evidence of a
nexus between the current disability and the disease or
injury in service. Caluza, 7 Vet. App. 498. The "new"
medical evidence does not show a nexus between the current
disability and the disease or injury in service. No
physician has expressed an opinion that there is a causal
relationship between the headaches and a disease or injury in
service.
Alternatively, a claim may be well grounded by competent
evidence that the current disability is a subsequent
manifestation of a chronic disease in service or if (1) the
condition is observed during service, (2) continuity of
symptomatology is demonstrated thereafter and (3) competent
evidence relates the present condition to that
symptomatology. Chelte v. Brown, 10 Vet. App. 268, 271
(1997); Savage v. Gober, 10 Vet. App. 489 (1997); see also
Grottveit, 5 Vet. App. at 93.
Although the veteran has reported that he had headaches in
service, there is no competent evidence that chronic
headaches were present in service. No physician has
expressed an opinion relating the present headaches to the
headaches the veteran reports that he had during service. A
determination of chronicity requires medical expertise, since
identification of the disease entity is required. 38 C.F.R.
§ 3.303(b). The veteran's statement that he had headaches in
service is not sufficient to establish chronicity because of
the requirement of identification of the disease entity.
Where the claim involves issues of diagnosis, competent
medical evidence is required. Grottveit, 5 Vet. App. at 93.
In the absence of competent evidence that the current
disability is a subsequent manifestation of a chronic disease
in service, a claim may be well grounded where the condition
is observed during service, continuity of symptomatology is
demonstrated thereafter and competent evidence relates the
present condition to that symptomatology. The veteran does
not specifically state that he has had continuing headaches
since service, although that would appear to be a fair
inference from his correspondence and statements submitted on
his behalf. This reading of his statements would be most
favorable to him. Accordingly, for the purpose of
determining whether the claim is well grounded, the Board
will assume that he is alleging continuing headaches since
service.
However, a well-grounded claim based on continuity of
symptomatology also requires that the condition be observed
during service with continuity of symptomatology demonstrated
thereafter and competent, in this case, medical, evidence
relating the present condition to that symptomatology.
Assuming that the veteran's statements establish that the
headaches were observed during service, the claim is still
not well grounded. There is no medical evidence relating the
current headaches to those reported during and subsequent to
service. Therefore, considering all evidence, old and new,
the claim for service-connection for headaches is not well
grounded. Without a well grounded claim, there is no duty to
assist the veteran in the development of the facts pertinent
to the claim for service-connection for headaches as mandated
by 38 U.S.C.A. § 5107(a).
The April 1994 rating decision denied service-connection for
chest pain because the separation examination did not show
chest pain, there was no evidence of continuity and there was
no evidence of a chronic impairment manifested by chest pain.
There had been a diagnosis of chest wall pain, following the
Persian Gulf screening examination in October 1992. The
evidence received subsequent to the April 1994 rating
decision includes medical records showing a diagnosis of
costochondritis and the veteran's statement regarding chest
pains in service. The additional evidence does not tend to
prove the merits of the claim as to each essential element
that was a specified basis for the final disallowance. The
additional evidence simply shows current chest pain. It does
not show any underlying pathology or tend to show that the
chest wall pain noted in service was chronic. The evidence
does not, otherwise, relate the costochondritis to the chest
pain in service or to any disease or injury in service.
Accordingly, the additional evidence does not materially
alter the basis for the prior disallowance. Accordingly, it
is not material and need not be considered in order to fairly
evaluate the veteran's claim for service-connection for chest
pain. Therefore, while new, it is not material.
ORDER
Service-connection for a disability due to undiagnosed
illness manifested by headaches, nausea, chest pain, muscle
aches and fatigue is denied. Service-connection for chest
pain and headaches is denied.
D. C. Spickler
Member, Board of Veterans' Appeals